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Lawyer Who Played “Nazi Card” Slammed by Appeal Court

Donn Martinez was riding his motorcycle approaching a network of freeways referred to as “Orange Crush” in Orange County, California, so named because of the maze of highways that come together at this point.

Unfortunately, he lost control of his bike and was injured. He attributed the accident to a poorly lit curb in the middle of the highway that divided two converging roadways. He sued the California Department of Transportation for negligence.

Donn was an ordained minister and a member of a Christian motorcycle club called “Set Free Soldiers”. The logo of the Set Free Soldiers is a skull wearing a World War II German-style military helmet, called “Fritz helmets”. Some say they look very much like the helmets worn by the U.S. Army. His license plate read “The Evil 1”, a biblical term for “Satan”.

Mr. Martinez’s trial lawyer was concerned that opposing counsel would exploit his client’s motorcycle affiliation, portraying him as a low-life biker and thus, prejudicing the jury against him.

To avoid these kinds of tactics, pretrial orders were obtained that provided there be no reference at trial to “membership in motorcycle clubs/gangs or to stickers or emblems” used by Martinez. As well, Martinez’s termination of employment from a California school district was off-limits. Finally, the court ordered there be no evidence led to elicit sympathy for the Department of Transportation with regards to their dire financial situation.

Despite these clear rulings defence counsel, Karen Bilotti, ignored the ground rules in a manner the Court of Appeal described as “egregious” as they overturned the verdict that dismissed Mr. Martinez’s case. It began with her Opening Statement where she made numerous references to the state of the Department of Transportation’s financial status. The Appeal Court said:

“Blessed with a trial judge who allowed it, trial counsel ran roughshod over opposing counsel and the rules of evidence. We have no choice but to reverse.”

The Appeal Court described Ms. Bilotti’s cross-examination questions as “gratuitously besmirching” of Mr. Martinez’s character and despite repeated objections from his counsel that were sustained (agreed to) by the trial judge, she flippantly ignored him.

Most blatant, however, was her final question to Mr. Martinez’s wife:

“At the time of the accident, the motorcycle that your husband was riding had a skull picture on it wearing a Nazi helmet; right?”

In relation to this breach of the pretrial court orders the Appeal Court referred to “Godwin’s Law”, a term coined by American attorney Michael Godwin in 1990 that provides that the first person to introduce the Holocaust or make analogies with Nazism is the loser in any discussion or argument. Bilotti was apparently attempting to counter the positive evidence led by Martinez’s lawyer of his charitable, Christian activities.

“The law, like boxing, prohibits hitting below the belt. The basic rule forbids an attorney to pander to the prejudice, passion, or sympathy of the jury.”

The Appeal Court concluded its opinion with a directive that the clerk of the court was instructed to send a copy of the Reasons to the State Bar (equivalent to the Law Society) notifying the Bar of its reversal of the case based “solely on prejudicial attorney misconduct”.

There is a broad line between aggressive advocacy and representation that intentionally mischaracterizes a litigant and the evidence proferred. Bilotti knowingly crossed that line, no doubt in her zeal to win at all costs.